Edsonic Pty Ltd v Cassidy (No 4) [2011] FCA 1022

Edsonic Pty Ltd v Cassidy (No 4) [2011] FCA 1022

Order 7 was varied nunc pro tunc because, to the extent it required Mr Lick to deliver up evidence and discovery material needed to defend the continuing proceeding and any appeal, it did not reflect the Court's intention and would deny procedural fairness. Charge 4 was dismissed because it did not identify facts constituting breach of the varied order and there was no evidence that Mr Lick possessed undisclosed material required to be delivered up. Charge 6 was dismissed because no submissions supported it and breach was not established. Although Mr Lick admitted non-compliance with order 12, the Court declined at that stage to find contempt because the breach was not wilful or...

Jurisdiction
Australia
Judgment Date
24 August 2011
Procedural Posture
Notice of Motion for Contempt in Federal Court Proceeding / Second Day of Hearing; Charges 4, 5 and 6 of Amended Statement of Charge Considered After Charges 1, 2 and 3 Had Been Summarily Dismissed
Outcome
Order 7 varied nunc pro tunc; charges 4 and 6 dismissed; further hearing of charge 5 adjourned on Mr Lick's undertaking; Ms Cassidy ordered to pay 80% of Mr Lick's costs directly to his counsel.
Legal Topics
['failure to Comply With Court Orders' 'delivery Up of Copyright Materials' 'verified Lists of Documents' 'variation of Entered Orders Nunc Pro Tunc' 'procedural Fairness and Natural Justice' 'pro Bono Costs Order']
['contempt of Court' 'civil Procedure' 'costs'] ['failure to Comply With Court Orders' 'delivery Up of Copyright Materials' 'verified Lists of Documents' 'variation of Entered Orders Nunc Pro Tunc' 'procedural Fairness and Natural Justice' 'pro Bono Costs Order']

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Procedural Posture

Notice of Motion for Contempt in Federal Court Proceeding / Second Day of Hearing; Charges 4, 5 and 6 of Amended Statement of Charge Considered After Charges 1, 2 and 3 Had Been Summarily Dismissed

Legal Issues

  1. 1 ['Whether order 7 of the orders made on 12 November 2010 should be varied nunc pro tunc to allow retention of materials needed for the continuing proceeding.' 'Whether charge 4 was bad on its face or supported by evidence of failure to deliver up Cassidy Material and Schedule A Material.' "Whether Mr Lick's admitted failure to comply with order 12 constituted contempt of court." 'Whether charge 6 was supported by submissions or evidence of breach of order 16.' "What costs order should be made given the parties' relative success on the contempt charges."]

Ratio Decidendi

Order 7 was varied nunc pro tunc because, to the extent it required Mr Lick to deliver up evidence and discovery material needed to defend the continuing proceeding and any appeal, it did not reflect the Court's intention and would deny procedural fairness. Charge 4 was dismissed because it did not identify facts constituting breach of the varied order and there was no evidence that Mr Lick possessed undisclosed material required to be delivered up. Charge 6 was dismissed because no submissions supported it and breach was not established. Although Mr Lick admitted non-compliance with order 12, the Court declined at that stage to find contempt because the breach was not wilful or...

Court Disposition

Order 7 varied nunc pro tunc; charges 4 and 6 dismissed; further hearing of charge 5 adjourned on Mr Lick's undertaking; Ms Cassidy ordered to pay 80% of Mr Lick's costs directly to his counsel.

Orders

  • ['Order 7 of the orders made on 12 November 2010 in this proceeding be varied nunc pro tunc as per para 2 of the notice of motion filed in Court today.' 'Paragraphs 4 and 6 of the amended statement of charge filed 14 April 2011 accompanying the notice of motion for contempt filed 23 February 2011 be dismissed.' 'On...